BVA9507168
DOCKET NO. 95-02 399 ) DATE
)
)
Related to a decision of the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Eligibility for payment of attorney fees from past-due benefits.
ATTORNEY FOR THE BOARD
R. D. Turano, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals (Board)
following a December 1994 rating decision of the Phoenix,
Arizona, Department of Veterans Affairs (VA) decision which
effectuated a November 1994 Hearing Officer decision granting
service connection on a secondary basis for several disorders
found to be related to the veteran's service connected
polycythemia and assigning a 100 percent schedular evaluation for
this disorder. It was determined that in light of the 100
percent schedular evaluation assigned for the veteran's service
connected polycythemia, the issue of entitlement to a total
rating for compensation purposes was moot. The effective date of
these awards was January 29, 1990. The veteran was notified of
this action by letter dated in January 1995.
The veteran had entered into a fee agreement with T.J., attorney
at law, in October 1993 for representation before the VA and the
Board, the agreement of which is the subject of the current
review. In November 1994, the veteran submitted a statement in
which he specifically revoked his power of attorney for
representation by T.J. in this matter. The matter was then
transferred to the Board for a determination concerning
eligibility for payment of attorney fees out of past-due benefits
by the VA to attorney T.J. The parties were notified in letters
dated in January 1995 that past due benefits were payable as a
result of the above noted determinations and that the Board would
be reviewing the matter of the fee agreement. No additional
evidence or argument was forthcoming, and the case is now ready
for review.
CONTENTIONS
The parties in this case have made no specific contentions
regarding whether the fee should be paid or whether or not the
fee is reasonable.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims files.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the evidence is against eligibility for payment of
attorney fees from past-due benefits.
FINDINGS OF FACT
1. The veteran served on active duty from November 1951 to
November 1956, February 1957 to June 1957 and from June 1958 to
May 1972.
2. In a decision by the Board dated in September 1991,
entitlement to an increased rating for polycythemia was denied.
3. Several issues, apparently raised by the veteran but not in
appellate status were referred to the RO for appropriate action,
which included entitlement to secondary service connection for
angina, tachycardia and chronic obstructive pulmonary disease, as
well as entitlement to a total rating for compensation purposes
based on individual unemployability.
4. In June 1992, a motion for reconsideration of this September
1991 Board decision in accordance with 38 U.S.C.A. § 7103 (West
1991) was denied.
5. In September 1992 the veteran was examined by the Department
of Veterans Affairs (VA) to determine the degree of impairment
associated with his service connected polycythemia.
6. In a rating action dated in September 1992, the RO denied
entitlement to service connection for several disabilities as
well as an increased rating for polycythemia and a total rating
for compensation purposes based on individual unemployability.
7. The veteran submitted a timely notice of disagreement to this
determination in September 1993.
8. In October 1993, the veteran entered into an agreement to pay
a fee to attorney T.J. for representational services before the
VA and the Board.
9. In a November 1994 decision, the Hearing Officer at the RO
determined that service connection was warranted for several
disabilities as secondary to the veteran's service connected
polycythemia and that a 100 percent schedular evaluation,
effective January 29, 1990, was in order. The issue of
entitlement to a total rating for compensation purposes based on
individual unemployability was found to be moot based on the
above action.
10. In a December 1994 rating decision, the RO effectuated the
November 1994 hearing officer's decision.
11. The favorable action by the RO creating an award of past due
benefits was not promulgated or derived from a final decision by
the Board addressing these particular issues but rather stemmed
from new claims.
CONCLUSION OF LAW
The criteria for a valid fee agreement between the attorney and
the veteran for representational services before the VA have not
been met. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R.
§ 20.609(c) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In the present case, the veteran has disabilities for which
service connection has been established including polycythemia.
In a decision by the Board dated in September 1991, entitlement
to an increased rating for polycythemia was denied. Several
issues, apparently raised by the veteran during a January 1990
personal hearing but not in appellate status were referred to the
RO for appropriate action. These issues included entitlement to
service connection on a secondary basis under 38 C.F.R.§ 3.310
for angina, tachycardia and chronic obstructive pulmonary
disease, as well as entitlement to a total rating for
compensation purposes based on individual unemployability. In
June 1992, a motion for reconsideration of the September 1991
decision of the Board in accordance with 38 U.S.C.A. § 7103
(West 1991) was denied.
In September 1992 the veteran was examined by the VA in order to
determine the degree of impairment associated with his service
connected polycythemia and in an effort to assist in the review
of these newly raised issues. In a rating action dated in
September 1992, the RO denied entitlement to service connection
for these disabilities at issue as well as for an increased
rating for polycythemia and a total rating based on individual
unemployability. The veteran submitted a timely notice of
disagreement to this determination in September 1993.
In October 1993, the veteran entered into an agreement to pay a
fee to attorney T.J. for representational services before the VA
and the Board. A copy of this fee agreement has been associated
with the record on appeal and in essence provides that a fee of
20 percent of any past due benefits will be paid directly by the
VA for representational services by T.J. in the veteran's claims.
In a November 1994 decision, the Hearing Officer at the RO
determined that service connection was warranted for several
disabilities as secondary to the veteran's service connected
polycythemia and that a 100 percent schedular evaluation was in
order. The issue of entitlement to a total rating for
compensation purposes based on individual unemployability was
found to be moot based on the above action. Records demonstrate
that in November 1994, the veteran submitted a statement in which
he specifically revoked his power of attorney for representation
by T.J. in the matters before the VA. In a December 1994 rating
decision, the RO effectuated the Hearing Officer's decision.
Presently, the fee agreement executed by the parties in October
1993 is the subject of review by the Board. It should be noted
that fees which could be lawfully charged by attorneys at law and
accredited agents for services and proceedings before VA had been
limited to $10 since the 1860's. See Walters v. National Ass'n
of Radiation Survivors, 473 U.S. 305 (1985). The Veterans
Judicial Review Act (VJRA), Pub.L. 100-687, 102 Stat. 4105
(1988), now allows VA claimants and appellants to enter into
agreements with attorneys and agents for the payment of fees for
services in representing them in proceedings before VA, as long
as the fees are neither "unreasonable" nor "excessive."
Under the governing criteria, attorneys and agents may charge
claimants or appellants for their services before VA, including
the Board, only if all of the following conditions have been met:
(1) A final decision has been promulgated by the Board with
respect to the issue, or issues involved; (2) the Notice of
Disagreement which preceded the Board decision with respect to
the issue, or issues, involved was received by the agency of
original jurisdiction on or after November 18, 1988; and (3) the
attorney at law or agent was retained not later than one year
following the date that the decision by the Board with respect to
the issue, or issues, involved was promulgated. 38 U.S.C.A. §
5904(c) (West 1991); 38 C.F.R. § 20.609(c) (1994).
All agreements for the payment of fees for services of attorneys-
at-law and agents must be in writing and signed by both the
claimant or appellant and the attorney-at-law or agent. The
agreement must include the name of the veteran, the name of the
claimant or appellant if other than the veteran, the applicable
VA file number, and the specific terms under which the amount to
be paid for the services of the attorney-at-law or agent will be
determined. 38 C.F.R. § 20.609(g).
Further, the legal criteria provide that a fee may not be
"charged, allowed, or paid for services of agents and attorneys
with respect to services provided before the date on which the
Board of Veterans' Appeals first makes a final decision in the
case." 38 U.S.C.A. § 5904(c)(1) (West 1991). In a precedent
opinion, the VA's Office of General Counsel cited an analysis of
the legislative history of the VJRA contained in the United
States Court of Veterans Appeals (Court) decision in In the
Matter of Smith, 1 Vet.App. 492, 508-09 (1991) (Steinberg, J.,
concurring), which highlighted the fact that Congress only
envisioned paid attorney representation after the Board first
enters a final decision on a claim. The General Counsel
concluded that an attorney may not receive or solicit a fee in
connection with a representation of a claimant before the
Department on a benefits issue until after the Board first issues
a final decision on that claim. VA O.G.C. Prec. No. 18-92, 57
Fed. Reg. 49747 (1992).
In this case, the Board has not currently adjudicated the
underlying claims at issue in the September 1992 RO decision or
those matters addressed by a hearing officer in a decision dated
in November 1994. The Board promulgated a decision denying
entitlement to an increased rating for polycythemia in September
1991 and referred several issues to the RO to address these
issues which were not in appellate status. A motion for
reconsideration of this September 1991 decision was denied in
June 1992.
Thereafter, the veteran had apparently undergone a VA examination
in January 1992, the report of which was not available. As such,
he was scheduled for a new VA examination which was performed in
September 1992. Following review of this examination report, the
RO adjudicated the new issues of entitlement to service
connection for disabilities secondary to the veteran's service
connected polycythemia and entitlement to a total rating for
compensation purposes based on individual unemployability. As
was required in reviewing these issues, the RO reviewed the
evaluations assigned for each of the veteran's service connected
disabilities, including the 60 percent rating for polycythemia.
It was thereby determined that service connection would be
granted for disabilities found to be proximately related to this
service connected disabilities and that a 100 percent schedular
rating was in order for the service connected polycythemia. As
such, continuing adjudication of the issue of entitlement to a
total rating for compensation purposes based on individual
unemployability was determined to be unnecessary as this matter
became moot. Accordingly, the Board finds that the September
1992 decision by the RO did not derive from the September 1991
decision by the Board which denied the veteran an increased
rating.
The United States Court of Veterans Appeals (Court) has concluded
that a claim for increased compensation benefits is a new claim
not subject to the finality of a prior decision. Proscelle v.
Derwinski, 2 Vet. App. 629 (1992). Hence, there plainly can be
no final Board decision on these issues upon which favorable
action was taken that would bring the fee agreement between the
veteran and attorney, T.J., within the required statutory and
regulatory parameters.
Accordingly, the Board finds that the favorable action by the RO
creating an award of past due benefits was not promulgated or
derived from a final decision by the Board addressing these
particular issues but rather stemmed from new claims.
Consequently, under 38 U.S.C.A. § 5904(c)(1) (West 1991) and
38 C.F.R. § 20.609(c)(1) (1994), the attorney may not charge the
veteran a fee for representational services before VA. In view
of the foregoing, the Board concludes that attorney T.J. is not
entitled to payment of attorney fees under the fee agreement in
this case from the veteran's past-due benefits and, thus,
eligibility for payment of such benefits is not established.
ORDER
Eligibility for payment by the VA of attorney fees from past-due
benefits is denied. None of the veteran's past-due benefits
resulting from the December 1994 rating decision which
implemented a November 1994 RO Hearing Officer decision should be
paid by the VA to the attorney in this case.
G.H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 5904(c)(2) (West
1991), a finding or order of the Board of Veterans' Appeals upon
review of an agent's or attorney's fee agreement may be reviewed
by the United States Court of Veterans Appeals under 38 U.S.C.A.
§ 7263(d) (West 1991). Under 38 U.S.C.A. § 7266 (West 1991), a
final decision of the Board of Veterans' Appeals may be appealed
to the United States Court of Veterans Appeals by a person
adversely affected by the decision within 120 days from the date
of mailing of notice of the decision. The date which appears on
the face of this decision constitutes the date of mailing and the
copy of this decision which you have received is your notice of
the action taken by the Board of Veterans' Appeals.